Ninth Circuit Rules No Incidental Take For Endangered Plants Under ESA

On August 15, 2016, the Ninth Circuit ruled that ESA does not require an Incidental Take Statement for endangered plants. In Center for Biological Diversity, et al., v. Bureau of Land Management, the Bureau of Land Management was challenged for failing to include a Biological Opinion with an “Incidental Take Statement” for a “threatened species” under the Endangered Species Act, a plant known as the Peirson’s milkvetc, in BLM’s analysis of expanded access for off-road vehicles in California’s Imperial Sand Dunes Special Recreation Area. The court ruled that Incidental Take Statements are reserved solely for fish and wildlife, and not plant species. The Center for Biological Diversity also argued that BLM’s management plans violated the National Environmental Policy Act, the Clean Air Act, the Federal Land Policy and Management Act, and the APA. The Ninth Circuit rejected these challenges as well.

The Imperial Sand Dunes Planning Area has long been a playground for off road vehicles, but it also is the home for protected plants and wildlife. BLM’s plans to expand access to off-road vehicles were challenged in 2013 by the Center for Biological Diversity. The Ninth Circuit ruled on the appeal in this case in August 2016.

Under the amended version of Section 7, an Incidental Take Statement is required if “the action is likely to result in incidental takings.” It requires BLM to issue an “Incidental Take Statement” that, inter alia, “specifies the impact of such incidental taking on the species,” and “specifies those reasonable and prudent measures that the Secretary considers necessary or appropriate to minimize such impact.” 16 U.S.C. § 1536(b)(4)(C).

Section 7(a)(2) requires evaluation of the threatened species, which are likely to be affected by BLM’s action. BLM must consult with the Fish and Wildlife Service whenever such actions “may affect” a listed species. 16 U.S.C. § 1536(a)(2). If the FWS determines the proposed action is likely to jeopardize the continued existence of a listed species or destroy or adversely modify a species’ critical habitat, BLM must prepare a Biological Opinion. The BiOp must include a summary of the information on which it is based and must adequately detail and assess how the action affects listed species and their critical habitats. 16 U.S.C. § 1536(b)(3). Additionally, a BiOp that concludes that the agency action is not likely to jeopardize a listed species or destroy or adversely modify its critical habitat must include an Incidental Take Statement which specifies the impact of any incidental taking, provides reasonable and prudent measures necessary to minimize such impacts, and sets forth terms and conditions that must be followed. 16 U.S.C. § 1536(b)(4).

Section 9 of the ESA and its implementing regulations prohibit any person from “taking” a threatened or endangered species. 16 U.S.C. § 12 1538(a)(1). “Take” is defined broadly under the ESA to include harming, harassing, trapping, capturing, wounding, or killing a protected species either directly or by degrading its habitat sufficiently to impair essential behavior patterns. 16 U.S.C. § 16 1532(19). A federal agency may take listed species only in accordance with an “Incidental Take Statement.” 16 U.S.C. § 20 1536(b)(4).

BLM argued that Incidental Take Statements are required only for the taking of fish and wildlife. The lower court noted that no court has ever held that section 7 requires an Incidental Take Statement for listed plants. The court noted that section 9 of the ESA only prohibits incidental take of listed fish or wildlife, not plant species and section 10 only applies to animals. The court evaluated the statutory construction and legislative history of the ESA to reach its conclusion that in drafting the ESA, Congress intended Incidental Take Statements only for fish and wildlife. The Ninth Circuit agreed and affirmed the District Court’s ruling.

Located in the southeast corner of California, the Imperial Sand Dunes, also known as “Glamis,” are the largest sand dunes in the state. Formed by windblown sands of ancient Lake Cahuilla, the dunes average 5 miles wide and extend for over 40 miles. This area is a favorite spot for off road vehicle enthusiasts, but permits are required for such use. BLM is responsible for managing approximately 214,930 acres of land within the Imperial Sand Dunes Proposed Recreation Area. As part of its administration of these lands, BLM has prepared the Imperial Sand Dunes Special Recreation Management Area Management Plan, Proposed Amendment to the California Desert Conservation Area Plan and Final Environmental Impact Statement.